CH. MUHAMMAD IBRAHIM ZIA, CJ. The titled appeal by leave of the Court has arisen out of the judgment of the High Court dated 13.03.2018, whereby the appeal filed by respondent No. 1, herein, has been accepted.
2. The precise facts forming the background of the captioned appeal are that the respondent, herein, filed a writ petition before the Azad Jammu & kashmir High Court on 26.04.2016, alleging therein, .that he was serving in the Services and General Administration Department as Section Officer and stood retired on 01.10.2001 after attaining the age of superannuation. It was maintained that through office memorandum dated 01.08.2009, the President of Azad Jammu & Kashmir was pleased to sanction increase in the pension of all the pensioners of Azad Jammu & Kashmir w.e.f. 01.07.2009 and he is entitled to get the benefit of the same. It was stated that he submitted various applications to the respondents/petitioners, herein, for increase in the pension but to no avail. It was prayed that the respondents/petitioners, herein, may be ordered to increase the pension of the petitioner as per category (i) of the aforesaid memorandum. The writ petition was contested by respondent No. 1 by filing parawise comments which were treated as written statement. It was pleaded that the petitioner/respondent, herein, stood retired from service through order dated 01.10.2001 and as per his pay scale, he was granted all the pensionary benefits. It was further pleaded that as per office memorandum dated 01.08.2009, which was amended on 14.06.2013, the pensioners who have been retired on or after 01.12.2001 are entitled to increase in pension, whereas, the petitioner/respondent, herein, stood retire d on 01.10.2001, hence, is not-entitled to any benefit. The other contents, of the writ petition were also negated. After necessary proceedings, the learned High Court through the impugned judgment dated 19.03.2018 has accepted the writ petition and directed the respondents/petitioners, herein, to increase the pension of the petitioner/respondent herein, by 20%.
3. Sardar Karam Dad Khan, Advocate-Ge neral, the learned counsel for the appellants after narration of necessary facts submitted that the impugned judgment of the High Court is based upon misconception and misinterpretation of the relevant office memorandum of the finance department. The amendment in the office memorandum was introduced on 14.06.2013, thus, it will operate prospectively and not retrospectiv ely. The writ petition before the High Court was not competent as the respondent was retired on 01.10.2001. According to the office memorandum enforced at the relevant time 15% increase in the pension was admissible and not 20%. The learned High Court has wrongly directed for 20% increase in favour of the respondent with effect' from 01.07.2009. He further submitted that the writ petition was also not maintainable on the ground of laches. The respondent, herein, filed writ petition on 26.04.2016, after delay of almost three years, hence, the same was liable to be dismissed.
4. Conversely , Ch. Muhammad Manzoor , Advocate, the learned counsel for respondent No. 1, forcefully defended the impugned judgment and submitted that the arguments of the counsel for the' appellants do not find support from- the law and facts of the case. Through the office memorandum dated 14.06.2013 no new criteria has been laid down rather an amendment for substitution of the criteria laid down in the office memorandum dated 01.08.2009 has been approved, thus, the amendment shall be read in the memorandum dated 01.08.2009 which is effective from 01.07.2009. Neither there is any ambiguity nor illegality . The impugned judgment is quite in accordance with law. He further submitted that the principle of laches is not attracted because the respondent is a retired civil servant and as long as he is getting the pension it is continuous right. In every month, grant of pension against the law gives rise to new cause of action, hence, the argument is not available. The impugned judgment is well in accordance with law , calling for no interference.
5. We have heard the learned counsel for the parties and gone through the record made available. The sole proposition involved in this case is nature of the amendment introduced through office memorandum dated 14.06.2013 which reads as follows:- "The President of Azad Jammu & Kashmir has been pleased to accord approval to amendment in para-1 of Finance Department's Office Memorandu m No. FD/R(332)/04/07/09, dated 01.08.2009 on the above subject as under:-
(i) Those pensioners who retried on, or before 20% 30.06.1999
(ii) Those pensioners who retired after 30.06.1999 15% Read
(i) Those pensioners who retried on or before 20% 30.1 1.2001
(ii) Those pensioners who retried on or after 15% 01.12.2001.
It is clear that para-1 of the office memorandum dated 01.03.2009 has been substituted in accordance with the amendment introduced through memorandum dated 14.06.2013. While incorporating the amendment, the amended shape of the of fice memorandum dated 01.08.2019 will be as under:--- "The President Azad Jammu and Kashmir has been pleased to sanction an increase in pension w.e.f. 1st July, 2009 until further order to all civil pensioners of the AJ&K Government including army pensioners drawing pension from AJ&K at the following rate:-
(i) Those pensioners who .retired on or before 20% 30.1 1.201 1
(ii) Those pensioners who retired on or after 15% 01.12.2001 2...
3...
5 to 8...
After substitution of para-1 the proposition is clear that the substitution is incorporated in the office memorandum dated 01.08.2009 which has been given effect from 01.07.2009. In this state of affairs, the learned High Court has not committed any illegality . The judgment is quite in accordance with law and facts of case, calling for no interference.
6. So far as the argument relating to attraction of principle of laches is concerned, as the pension is continuing right, therefore, the principle of laches is not applicable. Moreover , this argument even otherwise has no substance because the appellants have not raised this objection in their written statement/ objections filed before the High Court. The point which has not been raised in the pleadings or agitated before the lower Court cannot be allowed to be raised before the apex Court.
For the above-stated reasons, findings no force this appeal stands dismissed with no order as to costs.